Exhibit 10.2
Amended and Restated Employment Agreement
Innovex, Inc.
This Amended and Restated Employment and Confidentiality Agreement
(hereinafter "Agreement") is entered into between Innovex, Inc. and Xxxxx Acres
(the "Employee") as of December 31, 2008. This agreement amends and restates and
supersedes the Employment Agreement dated March 17, 2008.
WHEREAS, Innovex is a technology company engaged in continuing research and
development; and
WHEREAS, the Employee has been hired by Innovex as Chief Financial Officer
to perform such duties as may from time to time be directed by Innovex; and
WHEREAS, Innovex and the Employee deem it essential to formalize the
conditions of Employee's employment by written agreement; and
WHEREAS, the Employee has entered into this Agreement in consideration of
his employment with Innovex, the benefits associated with that employment and
the additional consideration provided for in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants, terms and
conditions herein contained, it is hereby agreed by and between the parties
hereto as follows:
1. Employment Duties and Obligations. Innovex hereby employs the Employee and
the Employee accepts such employment on the following terms and conditions:
1.1 Duties. Except as otherwise herein provided at Section 1.3, the
Employee shall devote his full business time and best efforts to the
operations of Innovex, including normal duties as Chief Financial
Officer. Employee agrees to faithfully and diligently exert his best
efforts to perform the duties and responsibilities of employment,
promote the interest and welfare of Innovex and its business, be
familiar with Innovex's policies that relate to his duties and to
abide by these policies, and do nothing which may cause loss or damage
to Innovex, its business or its business reputation and goodwill.
During the period of employment, Employee agrees not to solely, or
jointly with others, undertake or join any planning for or
organization of any business activity competitive with the business
activities of Innovex. Employee further agrees to comply with all
reasonable rules, regulations, orders and directives of Innovex and/or
its Board of Directors ("Board"). Employee acknowledges that some of
the duties for this position are related to supporting the continuity
of Innovex Inc. corporate technology, customers and suppliers. Another
part of the duties is the day to day activities in support of the
Thailand operation.
1.2 Supervision. Employee shall at all times discharge his duties in
consultation with, and under the supervision of the Chief Executive
Officer and the Board of Directors.
1.3 Outside Activities. This Agreement shall not preclude the Employee
from participating in the affairs of any other business organization,
or any governmental, educational or other charitable institution,
provided that the Board is notified in advance of such participation
and has determined that such activities do not unreasonably interfere
with Innovex's business or diminish the Employee's obligations under
this Agreement. Such determination by the Board shall not be
unreasonably withheld.
1.4 Representation. The Employee warrants and represents to Innovex that
Employee has no contractual commitments inconsistent with obligations
set forth in this Agreement, and that during the period of employment,
Employee will not render or perform services for any other
corporation, firm, entity or person which are inconsistent with the
provisions of this Agreement, and which are not authorized by Innovex.
2. Compensation and Benefits. In return for the Employee's services to
Innovex, the Employee shall receive compensation and benefits which shall
include the following:
2.1 Base Salary. Employee shall receive a monthly base salary of US
$19,333.33 (Nineteen Thousand Three Hundred Thirty Three Dollars and
33 cents).
2.2 Incentive Stock Options. Innovex may grant Employee stock options
based upon performance and in addition to any cash bonus. These stock
option bonuses shall be at the sole discretion of the Board of
Directors. Stock option bonuses are generally granted at the end of
Innovex's fiscal year (September), and the exercise price for stock
option bonuses is the fair market value of the stock on the date these
options are granted, as determined by the mean of the high and low
NASDAQ bid price for Innovex stock on the applicable date.
2.3 Company Incentive Bonus. Employee will be eligible for an incentive
bonus based upon the corporate incentive program, dependent on the
Company's performance and at the sole discretion of the Board of
Directors.
2.4 Other Employee Benefits. The Employee shall not receive such employee
benefits as are offered by Innovex to Thailand-based employees and as
detailed in their Innovex (Thailand) Ltd. Employment Agreement. The
Employee will be eligible for the Innovex, Inc. standard health,
dental and life insurance plans. Employee will be provided with
reasonable actual costs for transportation and housing as determined
based on the travel and location requirements of the position,
consistent with Innovex travel policy and as deemed appropriate by the
Chief Executive Officer to be in the best interest of the Company.
2.5 Vacation. Employee will be provided with up to four weeks of vacation
annually, subject to the approval of the Chief Executive Officer. This
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benefit is not for accrual but to be used as appropriate so there will
be no payout for unused vacation days at the end of employment.
2.6 Relocation. Upon termination of this agreement by Innovex, Innovex
will pay or reimburse all reasonable actual costs, including but not
limited to business class air fare, sea shipment of personal goods and
up to two weeks' temporary living accommodations if necessary to
relocate the Employee and his immediate family to their home country.
These costs must be incurred within 60 (sixty) days of termination.
Innovex will make any payment or reimbursement expenses no later than
10 days from the later of the date the amount was incurred or the date
the invoice was submitted by Employee. No payment or reimbursement in
any year shall affect the amount of payment or reimbursement in any
other year and the right to the payment or reimbursement cannot be
liquidated or exchanged for any other benefit.
2.7 Home Leave. The Employee will also be provided with one round trip
Thailand-USA business class airfare in each of the first three
calendar years of employment. This airfare may be provided to a
designated individual in lieu of Employee at the discretion of the
Chief Executive Officer.
2.8 Stock Option Plans. All options granted shall be granted pursuant to
and subject to the conditions of the applicable Stock Option Plan(s)
adopted by the Board of Directors and approved by the shareholders,
subject further to any amendments thereto.
3. Term and Termination. Employee understands and agrees that he is an
employee at will and, as such, his employment can be terminated by him or
Innovex at any time, with or without reason or cause. However, subject to
Section 3.1, should Employee's employment be terminated by Innovex
involuntarily, other than by reason of death or disability, Employee will
be provided with base salary and benefit continuation for twelve (12)
months, provided that, within sixty days of such termination, Employee
signs and does not rescind an agreement releasing any and all claims
against Innovex, its affiliates and related entities and does not breach
the terms under Sections 4, 5 and 6 of this Agreement and their subparts
either during or after termination of employment.
3.1 Termination for Cause. Employee is not entitled to receive the
severance identified in Section 3 of this Agreement if his termination
is a "Termination for Cause." For purposes of this Agreement, a
"Termination for Cause" shall occur if:
3.1.1 the Employee is indicted or a claim is brought against him
alleging the commission of a felony or any misdemeanor arising
out of a theft, embezzlement, other act of dishonesty, moral
turpitude, or any willful violation of the Securities Exchange
Act of 1934, as amended; or
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3.1.2 the Employee engages in acts of personal dishonesty that are
intended to result in substantial personal enrichment of the
Employee at the expense of Innovex; or
3.1.3 the Employee breaches any of his obligations under this
Agreement; or
3.1.4 gross mismanagement.
In the case of termination pursuant to Sections 3.1.3.or 3.1.4.
herein, Employee shall be given written notice of the reason for
termination and a 30 day period in which to cure the breach or
violation to the satisfaction of the Board of Directors, in its
sole discretion, or Innovex may terminate the Employee
immediately and pay the Employee for 30 days, if the Board of
Directors determines no cure to the breach or violation would be
acceptable. Employee will be terminated immediately in the case
of termination pursuant to Sections 3.1.1 or 3.1.2 and paid
through the last day of employment.
3.2 Termination by Employee. Employee may terminate his employment
pursuant to this Agreement at any time by giving Innovex ninety (90)
days' written notice and further agrees that during the notice period
he will provide all reasonable aid and assistance in hiring, training,
and introducing his replacement as may be requested by Innovex and
will undertake such other responsibilities as Innovex may direct.
Innovex may shorten or waive entirely the notice period at Innovex's
sole discretion. Employee acknowledges and understands that if he
voluntarily terminates his employment he is not entitled to receive
the severance described in Section 3 of this Agreement.
4. Confidentiality. During the period of employment with Innovex, Employee
will have access to and become acquainted with various trade secrets and
other proprietary and confidential information which are owned by Innovex
and which are used in the operation of Innovex's business. "Trade secrets
and other proprietary and confidential information" shall be understood to
mean any information or knowledge possessed by Innovex which is not
generally known to or readily ascertainable by outside parties who can
obtain economic value from its use or disclosure. This shall include,
without limitation, inventions, discoveries, ideas, know-how, research and
development information, designs, specifications, formulas, patterns,
compilations, computer programs, devices, methods, techniques, processes,
data, improvements, ideas, algorithms, computer processing systems,
drawings, proposals, job notes, reports, records, specifications,
information concerning any matters relating to the business of Innovex and
any of its customers, customer contacts, licenses, the prices it obtains or
has obtained for the licensing of its software products and services, or
any other information concerning the business of Innovex and Innovex's good
will.
4.1 Nondisclosure. Employee shall not disclose or use in any manner,
directly or indirectly, any such trade secrets or other proprietary
and confidential information either during the term of his employment
or at any time thereafter, except as required during the period of
employment with Innovex.
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4.2 Information Disclosed Remains Property of Innovex. All ideas,
concepts, information, and written material disclosed to Employee by
Innovex, or acquired from a customer or prospective customer of
Innovex, are and shall remain the sole and exclusive property and
proprietary information of Innovex or such customers, and are
disclosed in confidence by Innovex or permitted to be acquired from
such customers in reliance on Employee's agreement to maintain them in
confidence and not to use or disclose them to any other person except
in furtherance of Innovex's business.
4.3 Return of Material. Employee agrees that, upon request of Innovex or
upon termination of employment for any reason, Employee shall deliver
to Innovex originals and any copies of all documents, files, disks or
other computer media, or other material in his possession or under his
control that (a) may contain or be derived from ideas, concepts,
creations, or trade secrets and other proprietary and confidential
information as set forth in Sections 4, 4.1, and 4.2 above, or (b) are
connected with or derived from Employee's services to Innovex.
5. Inventions and Creations. Any and all inventions, discoveries,
improvements, or creations (collectively, "Inventions") made or conceived
by Employee during the period of his employment by Innovex shall be the
property of Innovex. Employee hereby assigns to Innovex all of his rights
to any such Inventions and agrees to promptly disclose any such Inventions
in writing to Innovex. Employee further agrees to execute and assign any
and all proper applications, assignments and other documents and to render
all assistance reasonably necessary to apply for patent, copyright or
trademark protection in all countries.
5.1 Exceptions. Section 5 of this Agreement does not apply to an Invention
for which no equipment, supplies, facility or trade secret information
of Innovex was used and which was developed entirely on Employee's own
time and (a) which does not relate (i) directly to the business of
Innovex or (ii) to Innovex's actual or demonstrably anticipated
research or development; or (b) which does not result from any work
performed by Employee for Innovex. Attachment 1 hereto constitutes a
complete list of the inventions made by Employee prior to employment
by Innovex as to which he has at least partial ownership. Innovex
shall have no claim of right or title to the inventions listed on
Attachment 1.
5.2 Definition of Inventions. For purposes of this Agreement, the term
"Inventions" shall mean discoveries, improvements, and ideas (whether
or not shown or described in writing or reduced to practice) and works
of authorship, whether or not patentable or copyrightable, which (a)
relate directly to the business of Innovex; (b) relate to Innovex's
actual or demonstrably anticipated research or development; or (c)
result from any work performed by Employee for Innovex, or for which
equipment, supplies, facilities or trade secret information of Innovex
is used, or which is developed on Innovex time.
5.3 Non-Covered Inventions. Should the Employee make a discovery,
improvement or Invention that is not covered by the provisions of this
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Agreement (a "Non-Covered Invention"), the Employee may, at his sole
option, disclose the Non-Covered Invention to Innovex and Innovex
shall then have a right of first refusal to enter into a license
agreement with Employee to acquire rights thereunder. If negotiations
extend for more than six months from the date of disclosure to
Innovex, Employee shall be free to submit the Non-Covered Invention to
others without obligation to Innovex and with respect to such
Non-Covered Invention.
6. Covenant Not to Compete. Employee agrees that he will not, during the
course of employment, or for a period of twelve (12) months commencing upon
termination of employment, voluntarily or involuntarily, directly or
indirectly, anywhere in the world, develop, or assist others to be
developed, any product functionally similar to the product(s) developed or
under development by Innovex. The term "develop" shall mean to design,
create general or detailed functional or technical specifications for,
enhance, or with respect to software, create or write code for, debug, or
otherwise modify code for, or otherwise participate in the creation or
modification of software product(s). Employee further agrees that he will
not, during the period of employment or for a period of six months
commencing upon the termination of employment, voluntarily or
involuntarily, directly or indirectly, anywhere in the world, perform
services for any directly competing business in the same field of
commercial activities that Innovex pursues or engages in or engage or
assist (a) in the organization of any such competing business or (b) in any
preparations for the manufacture, assembly, production, or design of any
product which competes with products of Innovex.
6.1 Employee's Acknowledgments and Agreements. Employee acknowledges and
agrees that the products developed by Innovex, are or are intended to
be marketed and licensed to customers throughout the world. Employee
further acknowledges and agrees to the reasonableness of this covenant
not to compete and the reasonableness of the geographic area and
duration of time which are part of said covenant. Employee also
acknowledges and agrees that this covenant will not preclude Employee
from becoming gainfully employed following termination of employment
with Innovex.
6.2 Inducing Employees to Leave Innovex; Employment of Employees. Any
attempt on the part of Employee to induce others to leave Innovex's
employ or terminate any other business relationship, or any effort by
employee to interfere with Innovex's relationship with its other
employees, independent contractors, or consultants would be harmful
and damaging to Innovex. Employee agrees that during the period of
employment and for a period of two years after termination, Employee
will not in any way, directly or indirectly (a) induce or attempt to
induce any employee, independent contractors, or consultant of Innovex
to quit employment or terminate their business relationship with
Innovex; (b) otherwise interfere with or disrupt Innovex's
relationship with its employees, independent contractors, or
consultants; (c) solicit, entice, or hire away any employee,
independent contractors, or consultant of Innovex; or (d) hire or
engage any employee, independent contractor or consultant of Innovex
or any former employee, independent contractor or consultant of
Innovex whose employment or business relationship with Innovex ceased
less than one year before the date of such hiring or engagement.
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6.3 Nonsolicitation of Business. For a period of two years from the date
of termination of employment, Employee will not divert or attempt to
divert from Innovex any business Innovex had enjoyed or solicited from
its customers during the year prior to termination of his employment.
7. Miscellaneous Provisions.
7.1 Remedies - Injunction. In the event of a breach or threatened breach
by Employee of any of the provisions of this Agreement, Employee
agrees that Innovex, in addition to and not in limitation of any other
rights, remedies or damages available to Innovex at law or in equity,
shall be entitled to a permanent injunction in order to prevent or
restrain any such breach by Employee or by Employee's partners,
agents, representatives, servants, employees, and/or any and all
persons directly or indirectly acting for or with Employee.
7.2 Severability. In the event that any of the provisions of this
Agreement shall be held to be invalid or unenforceable in whole or in
part, those provisions to the extent enforceable and all other
provisions shall nevertheless continue to be valid and enforceable as
though the invalid or unenforceable parts had not been included in
this Agreement. In the event that any provision relating to the time
period or scope of a restriction shall be declared by a court of
competent jurisdiction to exceed the maximum time period or scope such
court deems reasonable and enforceable, then the time period or scope
of the restriction deemed reasonable and enforceable by the court
shall become and shall thereafter be the maximum time period or the
applicable scope of the restriction.
7.3 Governing Law. This Agreement shall be construed and enforced
according to the laws of the State of Minnesota. All legal actions
arising under this Agreement shall be instituted in, and both Innovex
and Employee consent to the jurisdiction of, the court of Hennepin
County, Minnesota.
7.4 "Innovex" Defined. "Innovex" shall mean Innovex, Inc., Iconovex, and
any of their existing or future affiliates, including parent
companies, divisions, joint ventures, and partnerships.
7.5 Amendment or Termination. This Agreement replaces and supersedes all
prior agreements between Innovex and Employee relating to the same
subject matter. In case of conflict with any subsidiary agreement,
this agreement will take precedence. This Agreement may not be
terminated, amended, or modified in any way, except in writing signed
by both Innovex and Employee. It is the intention of the parties that
this Agreement shall be exempt from the requirements of Code Section
409a as a separation pay plan. Accordingly, all provisions herein
shall be construed to exempt such payment from the definition of
"deferral of compensation" that is subject to Code Section 409A in the
least restrictive manner necessary without any diminution in the value
of the payments to the Employee, so as to avoid the imposition of
taxes and penalties pursuant to Code Section 409A.
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7.6 Survival. Notwithstanding any termination of this Agreement,
regardless of the reason, Employee, in consideration of his employment
thereunder to the date of such termination shall remain bound by the
provisions of this Agreement which specifically relate to periods,
activities or obligations upon or subsequent to the termination of
Executive's employment.
7.7 Agreement Read, Understood and Fair. Employee has carefully read and
considered all provisions of this Agreement and agrees that all of the
restrictions set forth are fair and reasonable, are reasonably
required for the protection of the interests of Innovex and that he
has been provided adequate consideration in return for agreeing to be
bound by those provisions.
7.8 Dissolution of Agreement. In consideration of the benefits provided in
this Agreement, Employee agrees that the original agreement entered
into between Innovex (Thailand) Ltd. and Employee on March 17, 2008 is
null and void. Employee agrees to execute a Dissolution of Employment
Agreement effective the date of this Agreement.
AGREED:
Dated: December 31, 2008 /s/Xxxxx Acres
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Xxxxx Acres
INNOVEX, INC.
Dated: December 31, 2008 /s/ Xxxxx Xxxxxxxxxx
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By: Xxxxx Xxxxxxxxxx
Its: Chief Executive Officer
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Attachment 1
INVENTIONS MADE BY EMPLOYEE PRIOR TO EMPLOYMENT BY INNOVEX
None.
